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Kakabadze v. JC Penney Catalog Distribution Center

CASE NO. 5707 CRB-8-11-12



NOVEMBER 26, 2012











The claimant was represented by Stephanie L. Evans, Esq., Law Offices of Stephanie L. Evans, 460 New Britain Road-Rear, Kensington, CT 06037.

The respondents were represented by Colin Hoddinott, Esq., Law Offices of Jack V. Genovese, II, 200 Glastonbury Boulevard, Suite 301, Glastonbury, CT 06033.

This Petition for Review from the November 21, 2011 Finding and Award in Part/and Dismissal in Part of the Commissioner acting for the First District was heard May 18, 2012 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Jodi Murray Gregg and Daniel E. Dilzer.


JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has appealed from a Finding and Award in Part/and Dismissal in Part which resolved a contested hearing before the trial commissioner who heard the case. This Finding determined the claimant was entitled to benefits pursuant to § 31-308(b) C.G.S. for the loss of use of phalanges for his fingers. The claimant argues that the trial commissioner used an improper methodology to calculate the award, and that he should receive a higher permanent partial disability rating based on the medical evidence on the record. We find the trial commissioner reached a decision supported by the evidence in this matter. As a result, we affirm the Finding and Award in Part/and Dismissal in Part.

The trial commissioner found the following facts at the conclusion of the formal hearing. We note that the record reflects no dispute as to the compensability of the claimant’s injury and the commissioner found the claimant suffered a compensable injury to his left fingers/hand on November 29, 2008. The sole issue presented for adjudication was whether the medical evidence presented by the claimant supported his position as to the level of compensation. The claimant presented evidence from his treating physician, Dr. Steven S. Smith and from Dr. Robert C. Thompson. The commissioner found the reports and positions of the authorized treating physician, Dr. Smith, credible and persuasive in regards to the loss of function, use and disability of the claimant’s left fingers and hand. The commissioner did not find the reports of Dr. Thompson as credible and persuasive as Dr. Thompson was not the claimant’s treating physician. The commissioner noted that the level of the claimant’s disability could be calculated in two manners: either by evaluating the separate level of disability of each injured finger, or by evaluating the overall disability of the claimant’s master hand. A rating of 23 (23%) percent of the index finger, 37 (37%) percent of the 2nd finger and 25 (25%) percent of the reading finger equates to a total of 24.26 weeks of disability payments. A 15 (15%) percent of the master hand equates to a total number of 25.2 weeks. Findings, ¶ 10.

The trial commissioner determined that he had discretion to award either of the disability ratings for the individual fingers as stated by Dr. Smith in his report of February 19, 2010, or the overall rating of the hand, which was listed as 15 (15%) percent in that report. Findings, ¶ 12. The commissioner determined the overall 15% rating would provide the claimant slightly more weeks of disability compensation than the breakdown of the disability ratings on the fingers, and awarded benefits on that basis. Findings, ¶ 13. The commissioner noted that the parties had stipulated to a compensation rate in a Voluntary Agreement. The commissioner also noted that the respondents had submitted evidence that they had paid against the claimant’s permanent disability and ordered the respondents to pay the claimant the difference, if any, between what had been previously paid and the 25.2 weeks due to the claimant. Conclusion, ¶ G.

The claimant did not file a Motion to Correct the finding. Instead, he filed a Petition for Review and sought an extension in which to file an appeal brief. The respondents filed a Motion to Dismiss asserting that the claimant had failed to file timely Reasons of Appeal. Shortly thereafter, the claimant did file Reasons of Appeal.

Prior to considering the merits of the claimant’s appeal we believe we should address an administrative issue. There is a pending Motion to Dismiss which we shall deny. We are not persuaded that the respondents were prejudiced by the delay herein in receiving the claimant’s Reasons for Appeal. As we stated in Vitoria v. Professional Employment & Temps, 5217 CRB-2-07-4 (April 4, 2008), we are reluctant to dismiss a claim for procedural lapses in the absence of prejudice to the respondents. The respondents had sufficient time to prepare a defense to the legal claims advanced by the claimant.

The claimant did not file a Motion to Correct, so therefore, we must accept the factual findings in this matter as conclusive. Stevens v. Raymark Industries, Inc., 5215 CRB-4-07-4 (March 26, 2008), appeal dismissed, A.C. 29795 (June 26, 2008). The claimant’s appeal rests on the argument that the trial commissioner misapplied the statute. As the claimant views § 31-308(b) C.G.S., and the evidence herein, the trial commissioner should have awarded permanency benefits to the claimant consistent with a ninety (90%) percent loss of each injured finger. On appeal, we generally extend deference to the decisions made by the trial commissioner. “As with any discretionary action of the trial court, appellate review requires every reasonable presumption in favor of the action, and the ultimate issue for us is whether the trial court could have reasonably concluded as it did.” Daniels v. Alander, 268 Conn. 320, 330 (2004).

The claimant argues that the trial commissioner did not properly apply the statute as to compensation for permanent partial disability. The relevant language is as follows:

b) With respect to the following injuries, the compensation, in addition to the usual compensation for total incapacity but in lieu of all other payments for compensation, shall be seventy-five per cent of the average weekly earnings of the injured employee, calculated pursuant to section 31-310, after such earnings have been reduced by any deduction for federal or state taxes, or both, and for the federal Insurance Contributions Act made from such employee’s total wages received during the period of calculation of the employee’s average weekly wage pursuant to said section 31-310, but in no case more than one hundred per cent, raised to the next even dollar, of the average weekly earnings of production and related workers in manufacturing in the state, as determined in accordance with the provisions of section 31-309, or less than fifty dollars weekly. All of the following injuries include the loss of the member or organ and the complete and permanent loss of use of the member or organ referred to:
Fingers **
First finger         36 weeks
Second finger         29 weeks
Third finger         21 weeks
Fourth finger         17 weeks
**The loss or loss of use of one phalanx of a finger shall be construed as fifty per cent of the loss of the finger. The loss of or loss of use of two phalanges of a finger shall be construed as ninety per cent of the loss of the finger.
If the injury consists of the loss of a substantial part of a member resulting in a permanent partial loss of the use of a member, or if the injury results in a permanent partial loss of function, the commissioner may, in the commissioner’s discretion, in lieu of other compensation, award to the injured employee the proportion of the sum provided in this subsection for the total loss of, or the loss of the use of, the member or for incapacity or both that represents the proportion of total loss or loss of use found to exist, and any voluntary agreement submitted in which the basis of settlement is such proportionate payment may, if otherwise conformable to the provisions of this chapter, be approved by the commissioner in the commissioner’s discretion.

The claimant argues that the medical evidence would support an award for ninety (90%) percent disability for each of the injured fingers of the claimant’s hand. Had the trial commissioner awarded benefits based on this methodology the total number of weeks of compensation due the claimant would be greater than the award he received based on a calculation of the overall disability to the entire hand. We must examine the evidence relied upon by the trial commissioner to see if this evidence would have compelled an award based on this methodology.

The opinions of Dr. Smith, which the trial commissioner found persuasive, did not opine that any specific phalange of the claimant’s fingers was rendered unusable as a result of the compensable injury. His ratings treated the fingers as a single body part, and ascribed a partial impairment to each finger. We do not find that the trial commissioner reached an arbitrary decision herein. The medical evidence did not state that the claimant had lost the total use of any phalange. The evidence stated the claimant’s use was impaired due to injury. “One can only expect the trier of fact to render a decision based on what evidence actually says, not what it should have said.” Ben-Eli v. Lowe’s Home Improvement Center, 5006 CRB-3-05-10 (November 16, 2006).

In reaching this conclusion we are mindful of the rules of statutory construction delineated in § 1-2z C.G.S. Section 1-2z is often referred to as the “plain meaning” rule of statutory interpretation. Essentially, it posits that “[t]he meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself . . . .” In this circumstance the claimant would be entitled to enhanced benefits under § 31-308(b) C.G.S. for the “loss” of a phalange, or the “loss of use” of a phalange. The “plain meaning” of the term “loss” of a phalange is unambiguous. It would equate to the phalange being removed. There is no evidence as to any of the claimant’s finger joints being severed or amputated as a result of the compensable injury.

We then turn to the term “loss of use” of a phalange as defined by § 31-308(a) C.G.S. In doing so, we must try to read this provision in a manner consistent with the remainder of the statute. It is indisputable that when a finger is injured there will be an injury to one or more phalanges. In order to receive permanent partial disability benefits under Chapter 568 there must be a permanent impairment to such body parts. We note that in § 31-308(b) C.G.S., the term “complete and permanent loss of use of the member or organ” is used as the basis for compensation. We presume that would make evidence that the body part (the phalange) was now permanently unusable to the claimant a threshold matter to entitle the claimant for enhanced compensation beyond that attributable to an overall percentage of impairment to the finger or hand. In the event a compensable injury left a claimant’s phalange useable in an impaired condition, we conclude that applying the statute as a whole, that the trial commissioner would be able to issue the claimant an award for less than fifty percent permanent partial disability for an injured finger; if the evidence supported such a finding.1

We note that our precedent on § 31-308(b) C.G.S. and hand injuries stands unequivocally for respecting the discretion of a trial commissioner in determining the proper manner to compensate a claimant. See Garcia v. John Bianchi d/b/a Complete Change Landscaping Tree Removal and Excavating Company, 4670 CRB-5-03-5 (May 3, 2004) and Smith v. John’s Tree Service, 4272 CRB-3-00-7 (June 19, 2001).2 The claimant points to no appellate precedent inconsistent with these cases; nor do we find the trial commissioner abused his discretion in this case. Under these circumstances, we must defer to the trial commissioner’s judgment. See Kish v. Nursing and Home Care, Inc., 248 Conn. 379 (1999) and Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988).

As the trial commissioner’s decision in this matter is consistent with the evidence presented and our appellate precedent, we affirm the Finding and Award in Part/and Dismissal in Part.

Commissioners Jodi Murray Gregg and Daniel E. Dilzer concur in this opinion.

1 Were we to read any “loss of use” to a phalange as being equally compensable as the loss of the member, we would be determining the General Assembly intended even de minimis permanent impairments of a phalange should be compensated in the same manner as amputations. We believe in the absence of clear legislative history directing this result this statutory interpretation would be untenable. We do not intend to apply the “plain meaning” rule in a manner that could “yield absurd or unworkable results.” First Union National Bank v. Hi Ho Mall Shopping Ventures, Inc., 273 Conn. 287, 291 (2005). BACK TO TEXT

2 We note that in Garcia v. John Bianchi d/b/a Complete Change Landscaping Tree Removal and Excavating Company, 4670 CRB-5-03-5 (May 3, 2004), the claimant did receive a fifty (50%) percent permanent disability rating for one finger as the result of having his fingertip severed. BACK TO TEXT


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   Connecticut Workers' Compensation Commission.

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